July 23, 2013
ELENA AVALOS, Plaintiff-Appellant,
RICHARD TEXIDOR and CARLOS QUISPE, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0282-11.
Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys for appellant (John D. O'Dwyer, on the brief).
Respondents have not filed a brief.
Before Judges Graves and Guadagno.
Plaintiff Elena Avalos appeals from an order entered by the Law Division on May 11, 2012, denying her motion for reinstatement of her complaint pursuant to Rule 1:13-7(a). We affirm.
Plaintiff claims she sustained injuries on February 3, 2009, after she fell at 120 Lexington Avenue in Passaic. Plaintiff filed a complaint on January 18, 2011, naming Richard Texidor, who is listed on the tax map as the owner of 120 Lexington Avenue. The complaint also named Carlos Quispe as someone who "owned, managed, supervised . . . or controlled" the premises. Texidor was served and defaulted, but plaintiff claims Quispe could not be located. On August 5, 2011, the complaint was dismissed for lack of prosecution.
Plaintiff's attorney commissioned a skip-trace to locate Quispe in order to serve him with process in this action. Quispe was located in Wanaque and plaintiff served him on January 20, 2012. Quispe filed an answer and cross-claim for indemnification against Texidor on June 4, 2012.
Meanwhile, plaintiff's first motion to restore the complaint was denied on March 30, 2012. On April 21, 2012, plaintiff filed a "renewed application" for restoration, providing additional details of plaintiff's efforts to serve Quispe. Plaintiff first attempted service of Quispe on February 8, 2011, through Guaranteed Subpoena. Quispe could not be located at 120 Lexington Avenue and a post office search was unsuccessful. After Texidor was served, plaintiff "anticipated that information would be revealed by [him] as [to] the address for Quispe." This plan was thwarted when Texidor defaulted. The judge found that plaintiff had not demonstrated exceptional circumstances and denied the motion to restore.
"Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J.Super. 377, 382 (App. Div. 2011) (quoting Weber v. Mayan Palace Hotel & Resorts, 397 N.J.Super. 257, 262 (App. Div. 2007)). This is a multi-defendant case; therefore, if reinstatement is sought beyond ninety days, like here, the exceptional circumstances test applies. Id. at 383-84 (citing R. 1:13-7(a)). Against this standard, we see no abuse of discretion.
Plaintiff claims that after the unsuccessful attempt to serve Quispe by Guaranteed Subpoena in February 2011, she "did not have a further ability to locate defendant, Quispe at that point." Yet, on January 27, 2012, plaintiff apparently hired Spartan Detective Agency to perform a skip-trace for Quispe. Spartan provided Quispe's home address in Wanaque and he was served three days later.
Plaintiff never explains why she did not utilize these search resources until five months after dismissal. She blames the "inaccurate Tax Assessor information" and Quispe's failure to provide a forwarding address for the delay.
We do not find the decision of the Law Division that plaintiff failed to demonstrate exceptional circumstances to be an abuse of discretion.